Threat of Transition Period to UK Fishing Industry

When all is said and done, the Brexit negotiations can and should leave Britain in a favorable position. Britons voted to leave so that British policy could reflect its own interests, rather than that of Brussels and the European Union. Specifically, Britain's departure from the EU had the potential to enable a regaining of control of precious waters for the fishing industry. Given the scope of British waters under international law, British fishing vessels should be able to land over £6 billion worth of fish. However, under the regulations of the EU, British fishermen are only being able to land £770,000 worth of fish. See here for more information on British fishing losses in the EU.

The fishing industry, then, should be benefitted greatly by the Brexit process, and should give British fishermen access to neglected resources. Unfortunately, this industry is one that has become jeopardized by the negotiations. This was first hinted at by Theresa May on Monday 18th December, when she told MPs that that while Britain "will be leaving the Common Fisheries Policy on March 29th 2019 and the Common Agricultural Policy," it will not be until after the implementation (transition) period that Britain will be able to "actually introduce arrangements that work for the United Kingdom," and that "the arrangement that pertains to fisheries during that implementation period will, of course, be part of the negotiations for that implementation period." May essentially admitted that even after the UK's official departure from the CFP, Britain would still follow the CFP through the transition. Worse still, it seems that fishing will be on the negotiating table to obtain that implementation.

More recently, on 20th March 2018, the Secretary of State for Environment, Food and Rural Affairs Michael Gove confirmed this admission and elaborated to show that there will be EU control over fishing, at least throughout the transitional phase, saying that the UK has agreed to still be bound by the CFP rather than exercise our right as a non-EU member/independent country to manage our own waters and resources as conferred under international law, and that it won't be until 2021, AFTER the transition, that we will be free to act independently, and as fishing negotiations aren't until the autumn it means we wouldn't get the effect until 2022. These are unambiguous admissions that the UK fishing industry will remain bound to EU regulations, and will continue to lose out significantly throughout the transition period.

"Our proposal to the EU was that, during the implementation period, we would sit alongside other coastal states as a third country and equal partner in annual quota negotiations. We made that case after full consultation with the representatives of the fisheries industry. We pressed hard during negotiations to secure this outcome, and we are disappointed that the EU was not willing to move on this."(https://hansard.parliament.uk/Commons/2018-03-20/debates/FE048CAA-4B4B-429E-9AFD-DE4A48786248/LeavingTheEUFisheriesManagement)

Further, not only will the UK stay beholden to EU regulations, but the EU will argue on the UK's behalf during the 12-month period leading up to the December Council at the end of 2019. Under the guise of stability, then, the EU will continue to control and regulate what should be UK waters. This represents what is not an isolated incident; the negotiation period has left Britain at an unfair and severe disadvantage in several departments.

The Bruges Group has long campaigned that fishing should be excluded from the transitional agreement, and that the EU's CFP regulations should not be transposed into British law. Instead, we must have our own policy put into place as soon as we are outside the EU. To act, follow this link to ask your MP to protect the UK's Exclusive Economic Zone fishing waters and Britain's fishing industry.

It is quite clear in the articles below, as Michel Barnier has outlined since the 22nd September, that a transition means obeying the whole Acquis and therefore all EU law including the CFP.

Relevant articles from the transition agreement.

Article 4a

Good faith; The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.

They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Article 6 References to the Union and to Member States

1. For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards:

(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;

(b) the participation in the decision-making and governance of the bodies, offices and agencies of the Union;

(we obey all EU law but get no say)

Article 122 Scope of the transition

1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period (including the CFP).

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

6. Unless otherwise provided in this Agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom.

To compound this, HM government has agreed through ARTICLE 125 of the draft agreement that the UK will be subjected to the allocation of fishing resources through the CFP.

Article 125

Specific arrangements relating to fishing opportunities

1. As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations and negotiations.

2. For the purpose of paragraph 1, the Union shall offer the opportunity to the United Kingdom to provide comments on the Commission Annual Communication on fishing opportunities, the scientific advice from the relevant scientific bodies and the Commission proposals for fishing opportunities for any period falling within the transition period.

3. Notwithstanding Article 124(2)(b), with a view to allowing the United Kingdom to prepare its future membership in relevant international fora, the Union may exceptionally invite the United Kingdom to attend, as part of the Union delegation, international consultations and negotiations referred to in paragraph 1 of this Article, to the extent allowed for Member States and permitted by the specific forum.

4. Without prejudice to Article 122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article shall be maintained.[1]

Paragraph 1 relates to Article 43(3) TFEU; The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.[2]

The EU Commission therefore has sole power to alter the 'relative stability' resource shares. These can and have been altered - as happens on a state's accession - and the EU is free to do so to the UKs detriment. A further skewing of the already disproportionately unfair share the UK receives would exacerbate and compound the discarding and discard ban problem.

In addition to this the governments protestation that all will be well is through the assurance that the proposed agreement will be exercised under the provision of "good faith".

Therefore, under draft withdrawal agreement of 19 March, 'good faith' obliges HM Government to rigorously enforce all the terms of the agreement, including our re-obedience to all EU law including the CFP in its entirety, and to do so under the oversight and jurisdiction of the ECJ. Contrary to the semantics of the portrayal of 'good faith' being an all will be well clause it is actually a swallow the lot clause.

Consequently, 'good faith' means the UK has signed up to fully re-obey and subject our fleet to a fully enforced discard ban and resulting choke species. Has agreed to follow 'relative stability' shares and the ability of the Commission to alter them - possibly to our detriment. The UK will have agreed to re-obey the 'raw' CFP of 'equal access to the baseline' with the possible abolition of the 12 mile limit derogation with the termination of our current membership.

The transition renders all government and MPs commitments, promises and assurances to reclaim British waters as worthless semantics.

About the author

Isabel Brooke studies politics, philosophy, and religion at Ithaca College in the United States. In addition to studying while she is in London until May 2018, Isabel is working with the Bruges Group and for Dan Helmer's congressional campaign in the States.